A long line of lawbreakers

When Kim Davis was jailed for contempt last week after refusing to allow her deputy clerks to issue marriage licenses to same-sex couples, her lawyer attempted to put her case in historical perspective. "Kim joins a long list of people who were imprisoned for their conscience," he claimed, tracing her lineage through Dietrich Bonhoeffer, who was executed for resisting Nazi rule, to Martin Luther King Jr.

Davis' supporters quickly picked up on this argument, comparing Davis to Rosa Parks and trumpeting a new era of conservative civil disobedience. Like Davis' lawyer, they are arguing that a new era of "leftist lawlessness" in the United States has forced conservatives, normally defenders of the rule of law, to seek extralegal means of relief. Yet the law-and-order rhetoric so popular on the right since the 1960s hides an equally long conservative tradition of disobeying disagreeable laws.

At first blush, conservative civil disobedience sounds contradictory. After all, the right vocally denounced King and other advocates of civil disobedience for "deliberately undermining the foundations of internal order in this country." Will Herberg of National Reviewwrote in 1965, "With their doctrine of 'civil disobedience,' they have been teaching hundreds of thousands of Negroes ­— particularly the adolescents and the children — that it is perfectly all right to break the law and defy constituted authority if you are a Negro-with-a-grievance; in protest against injustice."

The magazine had rather less to say about the protracted law-breaking that had been occurring in the South since 1954: the massive resistance of white southerners to school integration. Many conservatives believed Brown v. Board of Education was a fundamentally illegitimate ruling (not unlike their reading of Roe v. Wade or Obergefell v. Hodges), agreeing with National Review's judgment that Brown was "shoddy and illegal in analysis, and invalid as sociology."

But ultimately conservatives looked to the civil rights movement as a model for successful grassroots protest, explicitly modeling their activism — including a newfound preference for civil disobedience — after the civil rights leaders of the 1950s and 1960s. White parents protesting busing in Boston in the 1970s borrowed freely from black activists, holding bus boycotts, sit-ins and marches. They hoped that sympathetic media coverage would lead to public support for their protests, but to their great disappointment, it seldom did. "How come when Negroes have a civil rights march people pay attention, but when we do nobody stirs?" one frustrated anti-busing activist asked. "Don't we have civil rights?"

Nor were the anti-bussers alone. The Sagebrush Rebellion in the 1970s, led by ranchers attempting to privatize federal land holdings, and Operation Rescue in the 1980s, an anti-abortion protest movement, relied on civil disobedience to advance their political agendas. Covering an Operation Rescue protest in 1989 where 275 people were arrested, National Review described the showdown between activists and police in sympathetic terms: "When police arrive to disperse them, the anti-abortionists go limp and have to be carried or dragged to waiting buses. As the woman is speaking, ten more rescuers crawl under the barricade on their hands and knees. A policeman charges toward them, shouting, as if at a dog, 'Staay! … Staay! … Stay!' They heel. The cop turns his back; they inch forward."

As these examples show, conservatives have turned again and again to civil disobedience as a form of protest, requiring the right to rethink its opposition to principled law-breaking. In 1991 National Review editors were hesitant to side with Operation Rescue, arguing that "tactics are fraught with moral import." But they did not blame anti-abortion activists for the breakdown of law and order, but rather the courts, the press and the politicians who left these activists with no other course of action.

That has largely become the default position on the right regarding civil disobedience. Despite efforts by writers like Charles Murray to promote a philosophy of conservative civil disobedience, the right is unwilling to embrace the doctrine as a general rule. Still, they repeatedly find exceptions for conservative activists who flout the law in order to advance their particular political causes. So it is that someone like Davis is not the advance guard of a new conservative civil disobedience, but the practitioner of a style of right-wing protest over half-a-century old.

Nicole Hemmer is Assistant Professor in Presidential Studies at the University of Virginia's Miller Center, working with the Presidential Recordings Program and a Research Associate at the US Studies Centre. She is the author of Messengers of the Right: Conservative Media and the Transformation of American Politics.